Calcutta High Court (Appellete Side)
For The vs Saleh on 16 May, 2012
Author: Soumen Sen
Bench: Soumen Sen
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16.05.2012
05
r.
C.O. 3523 of 2011
Mr. Bhddhadeb Ghosh,
Mr. Udayan Datta.
....... For the petitioner.
Mr. Kaushik Dey,
....... For the O.P.
This revisional application is directed against an order dated 26th August, 2011 whereby
the learned trial Judge allowed an application under Order 22 Rule 10 of the Civil Procedure Code
filed by legal representatives of the deceased plaintiff executrix, namely, Smt. Rekha Chatterjee.
It was contended before the learned trial Judge that the original plaintiff, namely, smt. Rekha
Chatterjee filed the suit for eviction against the defendant no.2. During the pendency of the suit,
the original plaintiff died. She died after the commencement of trial and before her cross-
examination could be completed. She executed a registered will on 28th August, 2003, in respect
of the suit property and Sri Ambar @ Babu Chatterjee and Smt. Basanti Chatterjee were
appointed as executor and executrix of the said Will. They also claimed to be the legatees and
beneficiaries. The said claim to proceed with the suit by such executor and executrix was
contested by the defendant no.2/tenant on the ground that unless the probate is obtained by the
said executor and executrix in respect of the said Will they have no right to proceed with the said
eviction suit without bringing on record other legal heirs.
The learned trial Judge on an interpretation of Section 211 of the Succession Act held that
the petitioner as executor of the said Will can continue with the eviction proceeding by getting
himself substituted and transposed as plaintiff in place of Smt. Rekha Chatterjee, the original
plaintiff. The plaintiff was issueless. The plaintiff died without leaving any legal heirs as such. The
present petitioner and opposite parties are contesting the proceeding for eviction. Relying on a
decision of the Orissa High Court, citation whereof has not been properly recorded in the order
impugned, the learned Judge has held that "the executor is not required to wait for the grant of the
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probate but can ipso facto being the legal representative prosecute the lis in view of the devolution
of the interest under Order 22 Rule 10 CPC".
In considering such submission, the relative scope of Section 211 and 213
of the Succession Act may be considered. Under Section 211 the executor or
administrator, as the case may be, of a deceased person is his legal representative
for all purposes, and all the property of the deceased person vested in him as such.
Here the legal representatives will have the same meaning as has been given in
Section 2(11) CPC. Therefore, it is Section 211 and not Section 213 that deals with
the vesting of property. This vesting does not take place as a result of probate. On
the executor's accepting his office, the property vests on him and the executor
derives his title from the will and becomes the representative of the deceased even
without obtaining probate. The grant of probate does not give title to the executor. It
just makes his title certain.
Section 213 enjoins that rights under the will by an executor or a legatee cannot be
established unless probate or letters of administration are obtained. Under Section 213, the grant of
probate is not a condition precedent to the filing of a suit in order to claim a right as an executor
under the will. This vesting of right is enough for the executor or administrator to represent the
estate in a legal proceeding. Therefore, Section 211 and Section 213 of the said Act have different
areas of operation.
Even if the will is not probated that does not prevent the vesting of the property of the
deceased on the executor/administrator and consequently any right of action to represent the estate
of the executor can be initiated even before the grant of the probate.(FGP Limited -vs- Saleh
Hooseini Doctor & Anr.) (2009) 10 SCC 223.
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Section 211 shows that the property vests in the executors by virtue of the Will and not by
virtue of the probate. Will gives property to the executor; the grant of probate is only a method by
which the law provides for establishing the Will. Section 211 further provides that the vesting is not
of the beneficial interest in the property; but only for the purposes of representation. The personal
property of the testator (including right of action) vests in the executor)s) on the death of the testator.
Section 336 of the Act provides for assent of the executor to the legacy after the death of the
testator. Section 213 acts as a bar to the establishment of rights under the Will by an executor or a
legatee unless probate or letters of administration have been obtained. This bar comes into play
only when a right as an executor or a legatee under Will is sought to be established. However, an
unprobated Will can be admitted in evidence for collateral purposes in any other proceedings apart
from probate proceedings. Therefore, on the demise of the testatrix, the property vested in the
executor.(Commissioner, Jalandhar Divisioin & Ors. -vs- Mohan Krishan Abroland & Anr.
With Mohan Krishan Abrol -vs- State of Punjab (2004) 7 SCC 505.
The right of an executor to get himself substituted in a pending proceeding has been
considered in Anjali Mullick -vs- Mrityunjoy Dey & Ors. Reported in 2004(2) CHN Page-450
in which it has been held that once he takes positive steps to protect the estate or applies for
probate, he enters into the office, and the duty then assumes the character of a legal duty to be
discharged by him as legal representative of the deceased person. While till grant of probate the
executor as such cannot establish any right claimed under the Will, he however, is not supposed not
to discharge his duties as the legal representative of the testator. In the discharge of his duties he
can definitely step into the shoes of the testator and act as legal representative in any case or
proceeding pending in any Court. But doing so he does not take any step to establish any right
claimed under the Will; he also does not make any attempt to establish his legal character, which
he need not establish at all in view of recognition given to it by section 211 of the Act. Bu seeking
his substitution in the pending case or proceeding in place and stead of the testator the executor
neither claims any right under the Will, nor seeks to establish such a right in the Court before which
the case or proceeding is pending. What he wants to establish is the right of the testator in the
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property, which is the subject matter of the pending litigation, and to establish such right not on the
basis of the Will, but independent of the Will."
In Binapani Kar Chowdhury -vs- Satyabrata Basu & Anr. (supra) It was held that
where the testator had himself filed a suit (seeking a declaration and consequential reliefs), and he
dies during the pendency of the suit, the executor or legatee under his Will, can come on record as
the legal representative of the deceased plaintiff under Order 22 Rule 3 CPC and prosecute the suit.
Section 213 does not come in the way of an executor or legatee being so substituted in place of the
deceased plaintiff, even though at the stage of such substitution, probate or letters of administration
has not been granted by a competent court.
Section 213 clearly creates a bar to the establishment of any right under a Will by the
executor or legatee unless probate or letters of administration of the Will have been obtained. Where
the right of either an executor or a legatee under a Will is in issue, such right can be established
only where probate (where an executor has been appointed under the Will), or letters of
administration(where no executor is appointed under a Will), have been granted by a competent
court. Section 213 does not come in the way of a suit or action being instituted or presented by the
executor or the legatee claiming under a Will. Section 213, however, bars a decree or final order
being made in such suit or action which involves a claim as an executor or a legatee, in the absence
of a probate or letters of administration in regard to such a Will.
However, with a view to complete justice between the parties it was directed that in the
event the suit is decreed, "the trial court should make it clear that the judgement and decree will
come into effect only on the first respondent obtaining and producing the probate of the Will, and till
then the decree should be considered only as provisional and not to be given effect." In view of the decisions referred to above, the executor can always substitute himself in the pending proceeding even though at the stage of such substitution probate or letters of administration have been not granted by a competent Court. However, in view of the decision of the Hon'ble Supreme Court in Binapani Kar Chowdhury -vs- Satyabrata Basu & Anr. Reported in 2006(4) CHN 158(S.C.) the court may require the executor and executrix to produce the probate of the Will at the time of 5 passing a decree. It would be open to the executor and executrix to bring on record the legal heirs and representatives of the deceased/plaintiff under Order 22 Rule 3 of the Civil Procedure Code, if they so desire, but in failing to do so would not render the said eviction proceeding infructuous or ineffective.
This revisional application is accordingly disposed of, with the aforesaid observations. Urgent photostat certified copy of this order, if applied for, be given to the learned advocate for the parties in compliance of necessary formalities.
(Soumen Sen, J.)